Expansion of Provisional Unlawful Presence Waivers of Inadmissibility

Contributed by Aaron Hall, Partner

More than eight months after President Obama announced his intention to expand the provisional waiver program, the Department of Homeland Security (DHS) has issued proposed regulations on the expansion of the I-601A provisional waiver program.  I-601A provisional waivers allow an applicant to waive a ground of inadmissibility triggered by unlawful presence if they are statutorily eligible for a waiver, are seeking such a waiver in connection with an immigrant visa application, and meet other conditions.

The provisional waiver process currently allows a qualifying applicant to get his inadmissibility waived prior to leaving the United States, saving the applicant from many months or even years outside of the country waiting for his waiver to be adjudicated. 

The new regulations would expand the provisional waiver process (1) by eliminating the requirement that provisional waiver applicants be certain immediate relatives of U.S. citizens and instead opening the process to all who qualify for the unlawful presence waiver under the applicable statute and meet certain other conditions; and (2) by allowing the requisite “extreme hardship” be shown to any U.S. citizen or lawful permanent resident spouse or parent instead of limiting the extreme hardship to U.S. citizen spouses. 

The proposed regulations are not final yet and are open for written comment by interested parties until September 21, 2015.  If the proposed regulations are implemented, they will greatly expand the number of applicants who can consular process with a provisional waiver.

Further Reading:

Proposed Regulations

Previous Posts on Provisional Waivers:

Provisional Waivers Mean Less Family Separation During Consular Processing (8/27/2013)

USCIS Officially Begins Accepting I-601A Provisional Waivers of Unlawful Presence (3/4/2013)

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

The Beginning of the End to Family Detention

Contributed by Koby Polaski, Senior Attorney, Edwards office

In 2014, millions of families from El Salvador, Honduras and Guatemala fled unspeakable violence in their home countries to seek safety in the United States. In response to this refugee crisis, the Department of Homeland Security made the tragic decision to open temporary detention facilities in New Mexico and Texas to house thousands of mothers and children. The government tagged the families in these detention facilities as number one priorities for removal from the United States. Their cases were accordingly rushed through the system, in many cases without access to counsel and without bond. It quickly became clear that the government’s goal was to remove these women and children – with complicated and viable asylum claims – from the United States as quickly as possible.

Although the detention facility in Artesia, New Mexico closed, the one in Texas remains open and continues to detain families arriving daily. This month, however, DHS announced its determination that reconsideration is appropriate for custody decisions of arriving families who have established eligibility for asylum or other relief under United States immigration laws. Going forward, ICE will generally not detain mothers with children, absent a threat to public safety or national security, if they have received a positive finding for credible or reasonable fear and the individual has provided a verifiable residential address. DHS will also be releasing eligible family units after reviewing their cases for these same requirements.

There is still much work to be done in defending and representing the rights of the families detained at these facilities, but we hope this development marks the beginning of the end to family detention.

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

Is DAPA Dead?

Contributed by Koby Polaski, Senior Attorney, Edwards Office

Today, the Fifth Circuit will hear oral arguments in the ongoing litigation over President Obama’s executive actions on immigration. The arguments today, and the Court’s subsequent decision, will address the federal government’s challenge to an injunction issued several moths ago by Texas District Court Judge Andrew Hanen.

If the federal government prevails, the Department of Homeland Security will be able to resume implementation of DAPA (Deferred Action for Parental Accountability) and expanded DACA (Deferred Action for Childhood Arrivals). If the twenty-six plaintiff states prevail, the programs will remain stalled.

Two judges in today’s three-judge lineup served on an earlier panel that refused to stay the lower court’s injunction while the present appeal is pending. That panel held that the federal government failed to make a sufficiently strong argument that the states lack standing. In other words, the Court held that the suing states probably met their burden of proving a concrete injury by showing that it would be costly for Texas to issue driver’s licenses to DAPA recipients. This finding was enough for the Court to refuse to stay the injunction.

We expect that these judges who, just weeks ago, refused to stay the injunction will again rule against DAPA and uphold the injunction for the duration of the litigation. This means that the United States Supreme Court will likely hear the case, following an appeal by the federal government. In this case, we likely won’t have a decision until the summer of 2016. Stay tuned!

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
•